James Enderbury andJonathan Kirkwood

“It would be legitimate to say that the Gover­nor General has made of himself one of the problems with which the Government has to contend, as it repairs a long-mismanaged economy at a time of international economic turmoil, and as it seeks to deal with the damage wreaked by the High Court”

David Barnett

Minchin: the flexible liberal

“Minchinite”. The English language needs a special word to describe Senator Nick Minchin’s dynamic school of lib­eralism. At the same time as he was ex­pressing outrage at the “unequal rights” conferred by the Native Title Act 1993 (Cth), Senator Minchin was co­authoring a parliamentary committee report which uiged that all prisoners lose the right to vote. His justification: “While rehabilitation is an important aspect of imprisonment, equally impor­tant is the concept of deterrence, seek­ing by the denial of a range of freedoms to provide a disincentive to crime. Those who disregard Commonwealth or State laws to a degree sufficient to warrant im­prisonment, should not expect to retain the franchise.” By Tim Fischer’s stand­ards, he’s High Court material.

JK (Source: Framed, Issue No. 35, Win­

ter 1998)

Break a leg, counsel

The public will be heartened to learn that young lawyers are embracing their thespian instincts. It’s here: PROXEMICS!!! Proxemics is “the study of bodies in spaces” according to Syd­ney University course instructors Mr Les McCrimmon and Dr Ian Maxwell. Proxemics teaches advocacy students the mechanics of making courtrooms open and unthreatening spaces. On the other hand, “if you want to make someone un­comfortable,” says Dr Maxwell, “you can position yourself in more powerful places.” (like next to the judge?) How­ever, none of this involves “tricks to dupe people” but the expansion of the stu­dents’ “communication repertoire” (be­yond horse-hair wigs, silk gowns and phrases like mutatis mutandis.)

JE (Source: University of Sydney News, Vol. 30, No. 11, 28 May 1998)

58 Volume 9 Issue 1

David Barnett, Constitutional Expert

You might remember that back in No­vember 1975 there was some confusion about the powers of the Governor Gen­eral. Thankfully, that matter has been cleared up and the final word is that it is thoroughly improper for a Governor General to make trouble for the Gov­ernment of the day. So it should be ap­parent to everyone that the incumbent, Sir William Deane, is behaving in a dis­tressingly unconstitutional way. Such is the damning argument of David Barnett, erstwhile columnist for the Australian Financial Review (16 April 1998, pi 5). The man responsible for a biography of John Howard (see your nearest book­shop bargain bin) has let it be known that he takes strong exception to Sir William’s public statements on the sub­jects of reconciliation and social justice. Opining that “if Deane were a frustrated politician, then he mote than made up for it as a judicial activist”, Mr Barnett echoes the concern of distinguished three-cheers historian Geoffrey Blainey that Sir William is “combining the roles of Governor General and shadow min­ister for social welfare”. Instead, he should be “in the service of the whole nation”. Mr Barnett concludes elo­quently that “it would be legitimate to say that the Governor General has made of himself one of the problems with which the Government has to contend, as it repairs a long-mismanaged economy at a time of international economic tur­moil, and as it seeks to deal with the damage wreaked by the High Court”. But eerily, laments Mr Barnett, Sir William enjoys “immunity from criti­cism”. Brave (soon to be) Sir David.

JK

Those Pesky Fair Trials

The peak bodies representing legal prac­titioners and judges in Australia have an­swered back to the man who presumes to know better than they do on matters of judicial adminis­tration and fair tri­als, the Federal At­torney General, Mr Daryl Williams. In March Mr Williams claimed that judges and lawyers are blocking reforms to the court system out of self-interest, and that these profession­als lacked the will to reduce costs and the length of trials. Mr Williams’ sug­gestion was that judges would have to be more “realistic” when interpreting that annoying little High Court deci­sion, Dietrich. Dietrich declared that there is a presumption of a fair trial in Australian common law, and that al­though there is no rule that unrepre­sented litigants must be legally repre­sented at public expense, the circum­stances of a case may require that fair­ness demands representation, especially when a person is accused of a serious crime. One solution to this problem is to adjourn a trial until representation is made available. Thejudicial Conference of Australia responded that Mr Williams’ coupling of remarks about levels of fund­ing with comments on court decisions “can reasonably be perceived as an at­tack on the independence of judges and against the public interest.” Mr Bret Walker SC, President of the Law Coun­cil of Australia, told the National Press Club during May’s National Law Week that he was saddened by the govern­ment’s perception of Dietrichs a “prob­lem”, and that instead the principles the decision defines should be a badge of honour from our nation’s highest court. Furthermore, to suggest that judges be more “realistic” about Dietrich-type cases by allowing trials to proceed would necessarily involve judges supplying ad­

vocacy assistance to the accused - a situ­ation contrary to the judicial function of independent arbiter. But Mr Williams has responded to all this by indicating

that it is “my duty to point out the eco­nomic consequences of the Dietrich case.” Polemic reminds its readers that in a country where fair trials are being per­

ceived as an unnecessary expense, Mr Williams contributed to the solution by cutting.....

JE (Sources: The Age, Wednesday 25 March 1998^Australian Tawyer: News­letter of the Taw Council of Australia, J uly 1998.)

Respecting Private Prisons’ Right to Privacy

In 1996, a Victorian community legal centre, Cobuig Brunswick Community Legal & Financial Counselling Centrc, submitted Freedom of Information (FOI) applications requesting access to the prison contracts and Operating Manuals for Victoria’s three private pris­ons. They were rcfused, mainly on the ground of commercial confidentiality. There followed a two year campaign which culminated in the release of ed­ited selections from the Operating Manuals, and an Appeal in October 1998 before the Victorian Civil and Ad­ministrative Tribunal for the release of the contracts. The Victorian Govern­ment and private prison operators - Cor­rections Corporation of Australia (CCA), Australasian Correctional Man­agement (ACM) and Group 4 Correc­tion Services (Group 4) - have spent vast sums on lawyers’ fees rcsisting this ap­plication. A decision is expected soon.

JK (Source: Framed, Issue No. 37, Sum­mer 1999)

It is my duty to point out the economic consequences of

the Dietrich case.

Daryl Williams

Volume9 Issue! 59